Chapter 3 - Admissibility and Waiver Requirements
Refugees must be admissible to the United States as an immigrant at the time adjustment of status is granted. However, an officer must remember that applicants who were admitted to the United States as refugees were subject to grounds of inadmissibility at the time of admission.
Therefore, any information contained in the A-file known to the refugee officer, consular officer, or inspections officer at the time of admission is generally not used to find the refugee inadmissible at the time of adjustment, unless the law or interpretation of the law has changed subsequent to admission, or a clear error was made by the original adjudicating officer.[1]
An officer makes a determination regarding the refugee’s admissibility at the time of admission and the officer adjudicating the adjustment of status application should give deference to this prior determination.
A. Exemptions
The following grounds of inadmissibility do not apply to refugees adjusting status:
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Public Charge – INA 212(a)(4)
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Labor Certification and Qualifications for Certain Immigrants – INA 212(a)(5)
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Documentation Requirements for Immigrants – INA 212(a)(7)(A)
B. Applicable Inadmissibility Grounds
The following grounds of inadmissibility apply to refugees adjusting status:
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Health-Related – INA 212(a)(1)
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Crime-Related – INA 212(a)(2)
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Security-Related – INA 212(a)(3)
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Illegal Entrants and Immigration Violators – INA 212(a)(6)
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Ineligibility for Citizenship – INA 212(a)(8)
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Aliens Previously Removed – INA 212(a)(9)
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Practicing Polygamists, Guardians Required to Accompany Helpless Persons, International Child Abductors, Unlawful Voters, and Former Citizens who Renounced Citizenship to Avoid Taxation – INA 212(a)(10)
Health-Related Considerations
Generally, if an officer waives the grounds of inadmissibility at the time of the refugee admission, the waiver carries forward to the adjustment application. A notable exception would be for waivers of medical inadmissibility for Class A medical conditions. In these instances, the waiver does not carry through to adjustment and the applicant must submit to a new medical exam to determine whether the Class A medical condition has been resolved.
C. Inadmissibility Grounds that May Not Be Waived
While waivers are generally available for most of the grounds listed in Section B, Applicable Inadmissibility Grounds,[2] the following grounds of inadmissibility cannot be waived:
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Controlled Substance Traffickers – INA 212(a)(2)(C)
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Espionage; Sabotage; Illegal Export of Goods, Technology, or Sensitive Information; Unlawful Overthrow or Opposition to U.S. Government – INA 212(a)(3)(A)
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Terrorist Activities – INA 212(a)(3)(B)
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Adverse Foreign Policy Impact – INA 212(a)(3)(C)
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Participants in Nazi Persecutions or Genocide – INA 212(a)(3)(E)
An officer should deny the adjustment application if no waiver is available due to the type of inadmissibility found.
National Security Issues
In the event that an adjudicating officer identifies at any stage one or more national security indicator(s) or concerns unknown at the time of the refugee grant, an officer should refer to USCIS guidance on disposition of national security cases. An officer should also follow current USCIS instructions on cases that involve Terrorist Related Inadmissibility Ground (TRIG) issues for disposition of the case or see their supervisor for questions on material support to terrorism.
Unless sent specifically to a field office for resolution of a TRIG issue, an officer should return any refugee adjustment case with unresolved TRIG issues to the Nebraska Service Center for resolution.
D. Waivers[3]
All grounds of inadmissibility listed at Section B, Applicable Inadmissibility Grounds[4] are subject to waiver, if the applicant can establish he or she qualifies for a waiver. An officer may have waived a refugee adjustment applicant’s ground of inadmissibility for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. This is a more generous waiver provision than what is used for general adjustments, which typically require an applicant to prove extreme hardship.
In adjudicating a discretionary waiver application for refugee adjustment, an officer must balance the humanitarian, family unity, or public interest considerations with the seriousness of the offense that rendered the applicant inadmissible. In making this determination, an officer should recognize that the applicant has already established either past persecution or a well-founded fear of future persecution, which is an extremely strong positive discretionary factor. Therefore, unless there are even stronger negative factors that outweigh the positive ones, the waiver application should generally be approved.
Often, waiver applications for refugees are handled overseas before the applicant is approved for the refugee classification. However, if a ground of inadmissibility arose after the applicant’s approval for the refugee classification, or if it was not known to the officer who approved the refugee classification, the applicant may seek a waiver. The officer should adjudicate the waiver as a part of the refugee adjustment process. The applicant generally seeks a waiver through the filing of an Application by Refugee for Waiver of Grounds of Excludability (Form I-602).
When an officer determines that an applicant is inadmissible and a waiver is available, an officer may grant the waiver without requiring submission of a Form I-602, if:
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The applicant is inadmissible under a ground of inadmissibility that may be waived (other than health related grounds);[5]
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USCIS records and other information available to an officer contain sufficient information to assess eligibility for a waiver;
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There is no evidence to suggest that negative factors would adversely impact the exercise of discretion; and
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It is appropriate to grant a waiver.
If an officer determines that the applicant does not need to file a Form I-602, the officer should indicate that they have waived the inadmissibility by annotating the adjustment application to reflect this action. An officer may use a written annotation, stamp, or pre-printed label to indicate the specific inadmissibility ground that they are waiving.
The officer’s signature and approval stamp on the adjustment application also serves as the signature and approval of the waiver. Waivers granted because the vaccinations were not medically appropriate do not require a waiver annotation on the adjustment application or the medical record on Report of Medical Examinations and Vaccination Record (Form I-693).[6] All others do require an annotation.
In cases that require a Form I-602, there is no need for a separate waiver approval notice because the approval of the adjustment application indicates the approval of the waiver application.
If the applicant is statutorily ineligible for a waiver (that is, the applicant is inadmissible under a ground of inadmissibility that cannot be waived) or if there are sufficient negative factors to warrant a discretionary denial of the waiver application, the officer denies the waiver application and specifies the reason(s) for denying the waiver in the written denial notice of the adjustment application.
While there is no appeal from the denial of the Form I-602, the applicant is notified in the denial notice of the right to renew the adjustment application before an immigration judge during removal proceedings.[7] The applicant has the opportunity to again seek a waiver of inadmissibility in conjunction with that application.
Footnotes
[^ 1] For example, a ground of inadmissibility was waived for which no waiver was available, or a national security issue was not properly addressed.
[^ 2] See Section B, Applicable Inadmissibility Grounds [7 USCIS-PM L.3(B)].
[^ 3] For more information on waiver policies and procedures, see Volume 9, Waivers and Other Forms of Relief, Part A, Waiver Policies and Procedures [9 USCIS-PM A].
[^ 4] See Section B, Applicable Inadmissibility Grounds [7 USCIS-PM L.3(B)].
[^ 5] See Health Related Considerations in Section B, Applicable Inadmissibility Grounds [7 USCIS-PM L.3(B)].
[^ 6] See INA 212(g)(2)(B).
[^ 7] See 8 CFR 209.1(e).